Achampong v. Weigelt

Jun 12, 1997
Versions:240 A.D.2d 247
658 N.Y.S.2d 606
1997 N.Y. App. Div. LEXIS 6521

Order of the Supreme Court, Bronx County (Jerry Crispino, J.), entered September 18, 1995, which, inter alia, granted defendants’ cross-motion for renewal of a prior motion to vacate a default, is unanimously reversed, on the law and facts, with costs and disbursements payable to plaintiff, and defendants’ cross-motion is denied.

In this case, the prior default motion was contested by defendants, who, thereafter, neither appealed nor moved for reargument/renewal within the statutory 30 day period pursuant to CPLR 5513. We have previously noted: "Where, as here, a party appears and contests an application for entry of a default judgment, CPLR 5511, prohibiting an appeal from an order or judgment entered upon default, is inapplicable, and the judgment predicated upon the party’s default is therefore *248appealable (Marrocco v Marrocco, 90 AD2d 989). The IAS Court therefore properly determined that the appellant’s prior failure to take a timely appeal from entry of the contested judgment was fatal to the subsequent vacatur motion (Pergamon Press v Tietze, 81 AD2d 831).” (Spatz v Bajramoski, 214 AD2d 436.)

Motions for reargument / renewal of a contested motion also are required to be made within the same statutory period in which an appeal may be taken (Henegar v Freudenheim, 40 AD2d 825). Since the defendants herein failed to either appeal or move to renew/reargue the order entered June 29, 1994 within the statutory period, the IAS Court erred in failing to deny the cross-motion to renew and in vacating the default.

Moreover, to vacate a default judgment, a party must demonstrate both a meritorious defense and a reasonable excuse for the default (Arias v Sanchez, 227 AD2d 284). While law office failure is an acceptable excuse for vacating a default (CPLR 2005), the conclusory assertion of misplacement of a file, the excuse offered herein by defendants for the delay in bringing the renewal motion, "is rarely an acceptable excuse” (Robinson v New York City Tr. Auth., 203 AD2d 351). Nor are "bare allegations of incompetence on the part of prior counsel” a basis to vacate a default (Spatz v Bajramoski, supra, at 436). Accordingly, even if the motion were not untimely, the IAS Court improvidently exercised its discretion in vacating the default. Concur—Milonas, J. P., Ellerin, Nardelli and Tom, JJ.